In Copyright Enforcement, Ought Implies Can

Reihan Salam and Patrick Ruffini have a excellent piece arguing that conservatives should resist Hollywood's campaign for ever-more-draconian copyright protections. The editor of the piece, National Review's Robert VerBruggen, disagreed with it strongly enough that he has posted a rebuttal:

One might find it rather odd for Salam and Ruffini to insist that the solution to piracy is “innovation” rather than law enforcement. By “innovation,” they mean primarily that Hollywood should make it easier and cheaper for customers to buy their content digitally, citing studies indicating that when digital content becomes readily available through legal channels, piracy goes down. But even assuming Hollywood can discourage piracy by cutting prices and offering its content in different ways, since when do we tell crime victims to appease their tormenters?

...of course, one may claim that the legal rights themselves are the problem, and should be eliminated or substantially weakened — but Salam and Ruffini take no such position in their piece, at least not explicitly. There are also the matters of how government should prioritize copyright enforcement, and what tradeoff we should strike between enforcing copyright laws and keeping legitimate Internet activity unrestricted. But Congress has for centuries recognized some form of copyright, the Constitution explicitly authorizes the legislature to do so, and even Salam and Ruffini concede that piracy is common and increasing. Thus it would seem that the industry has a strong moral and legal justification to ask the government to enforce copyright law more effectively.

These two pieces are largely addressing different questions. Ruffini and Salam point out that the federal government have been pouring resources into anti-piracy efforts, and restraining individual liberty in the process, for decades. These efforts haven't been very effective, and there's no reason to think that the even greater efforts Hollywood advocates will be much more effective. So, they argue, Hollywood needs to recognize that the war on piracy can't be won decisively and take pragmatic steps to deal with this reality.

VerBruggen responds by insisting that piracy is wrong. He's right, but this doesn't get him as far as he thinks it does. This isn't just an abstract exercise in moral philosophy. The government has limited resources, and a long list of problems to deal with. The question isn't "should the government try to stop piracy," it's "how many resources should the government devote to combatting piracy as opposed to other problems."

And VerBruggen never really grapples with this question. He seems to believe that the right amount of enforcement is more than we already have, but he doesn't offer any principled basis for deciding how much more, or how to tell when we've passed the point of diminishing returns. Without such a principle, we're just going to have this debate over and over again, as each new anti-piracy measure fails and Hollywood comes back for still more restrictions.